Scales v Bunnings Group Limited - [2021] NSWPIC 8

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Scales v Bunnings Group Limited [2021] NSWPIC 8
APPLICANT:	Ronald Scales
RESPONDENT:	Bunnings Group Limited
MEMBER:	Catherine McDonald
DATE OF DECISION:	5 March 2021
CATCHWORDS:	WORKERS COMPENSATION- section 60 expenses for surgery for frozen shoulder as a result of an injury; no resolution in expected time frame and treating doctor recommended surgery; insurer declined payment because its independent medical examiner said that the condition should resolve; Held- surgery reasonably necessary; Diab v NRMA and Murphy v Allity management discussed; award for applicant for section 60 expenses of and incidental to surgery.
DETERMINATIONS MADE:	1. Pursuant to s 60 of the Workers Compensation Act 1987, the respondent is to pay the costs of and incidental to the surgery proposed by A/Prof Haber in his report dated 9 July 2020.

STATEMENT OF REASONS

BACKGROUND

Ronald Scales is employed by Bunnings Group Limited (Bunnings) as a section manager. On 2 December 2012 he was struck by a motor vehicle at his employer’s premises and suffered an injury to his right shoulder and the right side of his neck.
The only issue in the proceedings is whether an arthroscopic capsular release operation proposed by A/Prof M Haber is reasonably necessary medical treatment as a result of the injury.

PROCEDURE BEFORE THE COMMISSION

The matter was listed for telephone conference on 8 January 2021 when Mr Horan of counsel appeared for Mr Scales and Ms Nguyen appeared for Bunnings. The Application to Resolve a Dispute (ARD) was amended by consent to nominate 2 December 2019 as the date of injury.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
Because of the narrow issue, I proposed that the matter proceed by way of written submissions and the parties have agreed to the determination of the matter without a conference or formal hearing.

EVIDENCE

The following documents were in evidence before the Commission and taken into account in making this determination:

(a) ARD and attached documents, and
(b) Reply, including CCTV footage of the injury.

Mr Scales said in his statement dated 22 September 2020 that he was struck on his upper right arm. He reported the injury but continued his shift. He continued to work on the following days and saw a physiotherapist at Bioscan, Bunnings preferred provider. After about four sessions of physiotherapy, his neck pain improved but his shoulder pain did not and he saw his general practitioner, Dr G Albert.
Dr Albert referred Mr Scales to A/Prof Haber who prescribed the treatment summarised below. A/Prof Haber then proposed a shoulder arthroscopy and capsular release.
Liability for surgery was…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] NSWPIC 8
Decision Date: 5 March 2021

CaseChat Overview and Summary

Scales v Bunnings Group Limited involved the applicant, Scales, who was seeking to recover expenses under section 60 of the Workers Compensation Act for surgery to address a frozen shoulder resulting from an injury. The respondent, Bunnings Group Limited, had declined to cover these costs, arguing that the condition should resolve naturally and that surgery was not necessary. The matter was heard in the Workers Compensation Commission of Queensland.

The primary legal issues centred on whether the surgery was reasonably necessary under section 60 of the Act. The court examined whether the treating doctor's recommendation for surgery was justified and whether the insurer's contention that the condition would resolve without surgical intervention was valid. The court had to consider the authority of Diab v NRMA and Murphy v Allity management in determining what constitutes a reasonably necessary medical expense.

The court found that the surgery was reasonably necessary, aligning with the treating doctor's recommendation. It held that the insurer's independent medical examiner's opinion did not outweigh the treating doctor's assessment. The court's reasoning was based on the principle that in cases of conflicting medical opinions, the treating doctor's judgment is generally given more weight. Consequently, the insurer was ordered to reimburse the applicant for the expenses associated with the surgery and any incidental costs. This decision underscores the importance of the treating doctor's recommendation in disputes over necessary medical treatment under workers compensation legislation.

Orders